We first discuss the procedural history of the case. Plaintiff initially
brought claims against the defendants for trespass, conversion, violation of easement,
unfair competition, and unjust enrichment. Plaintiff's operative complaint at trial,
however, was its second amended complaint that alleged two theories of recovery:
tortious interference with real property rights and assumpsit/implied contract. Before
trial, plaintiff elected to pursue only its claim for assumpsit/implied contract. Following
plaintiff's election, defendants moved before trial for judgment on the pleadings under
ORCP 21 B. The trial court denied defendants' motion, and trial proceeded on plaintiff's
claim for assumpsit/implied contract, resulting in the award to plaintiff.

Defendants' first assignment of error is dispositive of the appeal. They
argue under that assignment that the trial court erred in denying their motion for judgment
on the pleadings. ORCP 21 B provides that, after the pleadings are closed, "any party
may move for judgment on the pleadings." On appeal, we accept the well-pleaded
allegations of facts contained in plaintiff's claim for assumpsit as true and inquire whether
those allegations alleged a claim in assumpsit as a matter of law. Slogowski v. Lyness,
324 Or 436, 439, 927 P2d 587 (1996).

The following facts are alleged in plaintiff's second amended complaint.
Plaintiff owns a parcel of commercial real property in the Jantzen Beach area (Parcel A). Plaintiff bought Parcel A from Westwood Corporation, Developers & Contractors
(Westwood) in April 1988. Westwood had purchased Parcel A from Hayden
Corporation. As part of its purchase from Hayden Corporation, Westwood procured from
Hayden a restrictive covenant that attached to land (Parcel B) owned by Hayden that was
adjacent to Parcel A. The restrictive covenant document was entitled "Declaration of
Building Restriction," and was recorded in Multnomah County. That document provides,
in part:

"As a material inducement for Westwood to purchase [Parcel A], Hayden
Corporation, hereby agrees and declares, on its behalf and on behalf of its
successors and assigns, that no buildings or other improvements, excluding
parking lot improvement, landscaping or parking lot lighting, shall be
erected or constructed on [Parcel B] described in 'Exhibit B' * * * east of
the lines designated as the lines of future building wall and fascia on the
plan attached hereto as 'Exhibit C.'

"This declaration shall run with the land and be binding upon and insure to
the successors and assigns of Hayden Corporation and Westwood
Corporation."

In 1995, defendant MBK bought a portion of Parcel B that included the area
subject to the restrictive covenant. MBK then entered into a ground lease with defendant
Circuit City "to build, maintain, and occupy a 42,684 square foot building," half of which
was built within the area subject to the restrictive covenant. MBK thereafter sold its
interest in that portion of Parcel B to defendant Jantzen Dynamic. The gist of plaintiff's
assumpsit claim is that the Circuit City building interferes with the visibility that the
restrictive covenant protects--that passing motor vehicular traffic on North Hayden Island
Drive will have an unrestricted view of Parcel A. >

As pertinent to the issue under the first assignment of error, plaintiff's
second claim for relief entitled "Implied Contract/Assumpsit" alleges:

"19.

"Defendant MBK had no right to build within the legally restricted
area without Plaintiff's consent and release, and thus, wrongly warranted
that Circuit City could build within that legally restricted area under the
ground lease.

"* * * * *

"22.

"Approximately one half of the Circuit City Parcel, leased to Circuit
City by MBK and Jantzen Dynamic (with the warranty that it could be used
by Circuit City for construction purposes), falls within Plaintiff's legally
restricted area.

"23.

"Neither MBK nor Jantzen Dynamic Corporation could lawfully
authorize construction on that portion of the Circuit City Parcel within the
legally restricted area, yet MBK did authorize such construction, Circuit
City relied on Defendants' false authority, and built its building in violation
of the [restrictive covenant]. As a result of Defendant MBK's actions,
MBK and Jantzen Dynamic should compensate Plaintiff for the continuing
usurpation of its property right.

"* * * * *

"26.

"Plaintiff has requested restitution from MBK and Jantzen Dynamic
in the amount that they have unjustly enriched themselves on account of
Plaintiff's property right. Defendants MBK and Jantzen Dynamic have
refused to pay those benefits to Plaintiff.

"The common law forms of action of debt, covenant and account
were conceived as property claims and were ill adapted to deal with the
numerous ways in which claims for breach of contract, express or implied,
could arise. Over a period of centuries the English courts developed the
assumpsit form of action. Special assumpsit permitted damages for the
breach of a simple contract. The next creation was general assumpsit,
which provided a remedy in a variety of situations in which, although there
was no contract between the parties (express or implied in fact), the law
would create a promise to pay in order to avoid unjust enrichment. Thus, if
someone paid money to the defendant that should have been paid to the
plaintiff, the law created an implied-in-law 'contract' which required the
defendant to pay the money to the plaintiff. Often referred to as indebitatus
assumpsit or quasi-contract, the actions had an equitable character because,
under the circumstances, 'the defendant * * * is obliged by the ties of
natural justice and equity to refund the money.' Moses v. MacFerlan, 2
Burr 1005, 97 Eng Rep 676 (KB 1760).

"At least three classes of 'common counts' of general assumpsit were
created, including (1) the indebitatus counts, (2) the value counts, and (3)
account stated. Major indebitatus counts included money paid to the
defendant's use, money had and received, and goods sold and delivered.
Major value counts included quantum meruit and quantum valebat.

"The money count for money had and received came to be used as a
vehicle to recover damages for torts. If one by fraud, duress, trespass or
other tort obtained another's property and converted it or sold it to another,
it was said that the plaintiff could 'waive' the tort and sue in assumpsit."

In this case, when plaintiff elected not to proceed on its claim for tortious
interference with its real property rights and sought relief under its assumpsit claim, it is
held to have waived the tort as described in Davis. Nonetheless, to state a claim in
assumpsit, plaintiff must allege facts that support such a theory. In paragraph 27 of
plaintiff's amended complaint alleges that defendants have been unjustly enriched because
they "wrongfully appropriated * * * the commercial value Plaintiff could and should have
received for the release of its building restriction from a commercial developer desiring to
build on the Circuit City Parcel." The question becomes whether paragraph 27 alleges
that defendants obtained and converted plaintiff's property interest arising from the
restrictive covenant. See Davis, 295 Or at 469-70; see also McCarthy v. Tomlinson, 91
Or App 685, 687, 756 P2d 687 (1988) (holding that the plaintiff's complaint was properly
dismissed when it failed to allege that the defendants wrongfully appropriated the
plaintiff's property).

To answer that question, we examine first the nature of the property
interest that plaintiff claims defendants have appropriated. Plaintiff's property interest
arising from the terms of the restrictive covenant, as alleged in its complaint, is
appurtenant to Parcel A. It was created "to benefit the dedicator as the possessor of a
particular tract of land." Sunset Lake v. Remington, 45 Or App 973, 977, 609 P2d 896
(1980). Plaintiff can assert that interest only "by virtue of [its] ownership of the land."
Braat v. Aylett, 278 Or 549, 552, 564 P2d 1030 (1977). Consequently, the property
interest reflected in the restrictive covenant is not severable from the land, nor is it
personal to plaintiff. Id.; see alsoMonese v. Struve, 155 Or 68, 77, 62 P2d 822 (1936)
("Rights conferred by an easement attach to the estate and not to the person of the
dominant tenement"). Here, the appurtenant property interest that attaches to Parcel A is
in the nature of a view easement across Parcel B because it permits Parcel A to be visible
from North Hayden Island Drive.

One other consideration influences our analysis. At the core of the policy
underlying indebitatus assumpsit is the concept of restitution--a remedy that restores to
the plaintiff what is rightfully the plaintiff's. The Supreme Court has held that the remedy
of restitution contemplates the restoration of money, or, where no money has actually
passed, the restitution of something that can be presumptively converted into money
before the action is filed. Powell v. Sheets, 196 Or 682, 699, 251 P2d 108 (1952); see
also Fleming v. Wineberg, 235 Or 472, 482, 455 P2d 600 (1969) ("Restitution is said to
be applicable in any situation in which one person is accountable to another on the ground
that otherwise one would unjustly benefit or the other would unjustly suffer loss.").
Restitution> is the value of the benefit that the defendant received, (i.e., the amount by
which the defendant was unjustly enriched). Restatement of Restitution ch. 7 Introductory
Note 524-25 (1937). A claim for "money had and received," actionable in assumpsit,
illustrates the point because under such a claim a plaintiff receives restitution for what
was previously rightly the plaintiff's. Here plaintiff however does not seek restitution of
money or restitution of something that can be presumptively converted into money before
the action was filed. Rather, it seeks to recover through its complaint the value of the
benefit that plaintiff could "have received for the release of its building restriction."
Although, in a sense, that measure appears to assess the amount that defendants have been
unjustly enriched, it fails to engage with the concept that assumpsit is a remedy to recover
on what the law implies is a contract to make restitution for something tangible that
belonged to the plaintiff and was appropriated by defendants.

We conclude for the above reasons that the trial court erred in denying
defendants' motion for judgment on the pleadings on the ground that plaintiff's claim did
not lie in assumpsit. Based on our holding, we need not address defendants' other
assignments of error on appeal or the assignments of error on plaintiff's cross-appeal.

Reversed on appeal; cross-appeal dismissed as moot.

1. All defendants appeal from the judgment. However, only defendants MBK
Northwest (MBK) and Jantzen Dynamic Corporation (Jantzen Dynamic) were subject to the
assumpsit claim.

2. In its second amended complaint, plaintiff initially alleged a right to Circuit City's
lease payments, alleging that those payments represented the benefit of defendants' violation of
the declaration. The trial court ordered those allegations stricken from the record but allowed
plaintiff to pursue the damages for the "commercial value [p]laintiff could and should have
received for the release of its building restriction from a commercial developer desiring to build
on the [burdened parcel]."

3. Defendants also argued that, because plaintiff has been able to lease its building
for more money as a result of defendants' redevelopment of the area adjacent to plaintiff's
property, there has been no diminution in value to plaintiff's property as a result of the violation. We do not address that argument because those facts are not in the pleadings and are therefore
not relevant to whether defendants are entitled to judgment on the pleadings. See Slogowski, 324
Or at 439.

"The general rule stated in the majority of cases we have found is that, in an action
for use and occupation, or for damages to realty, based on assumpsit, the plaintiff
must prove that the defendant occupied the premises with his permission, either
express or implied, or that the trespasser obtained something from the soil, such as
growing crops, timber or ore, and appropriated the same to his own use. If the
trespasser simply used the property of another to save himself inconvenience or
even expenditure of money, the owner cannot maintain an action of debt or
assumpsit."

6. Although plaintiff's underlying tort claim pertained to the violation of the restrictive
covenant, it is important to understand that the violation of that covenant is not the thing that
plaintiff alleges was taken by defendants. In fact, defendants could not have received, acquired,
or benefitted from the view easement. What they received, acquired, or benefitted from was the
release of the view easement.